Rachel L. Pickering, of Kansas Appellate Defender Office, was on the brief
for appellant.

David E. Yoder, county attorney, and Stephen N. Six, attorney
general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Walter G. Spotts was sentenced under K.S.A. 2006 Supp. 21-4643 after he
pled no contest to two counts of rape for engaging in sexual intercourse with a 12-year-old girl in
violation of K.S.A. 21-3502(a)(2), with each count an off-grid person felony. See K.S.A.
21-3502(c). On the first count, he was sentenced to life imprisonment without the possibility of
parole for 620 months (51 years, 8 months). On the second count, he was sentenced to life
imprisonment without the possibility of parole for 300 months (25 years). The district court
ordered the sentences to run consecutively.

On appeal, Spotts makes two arguments. First, he challenges his sentences as cruel or
unusual punishment under § 9 of the Kansas Constitution Bill of Rights. Second, he claims
the
district court abused its discretion in denying his motion for downward durational departures
under K.S.A. 2006 Supp. 21-4643(d). We reject both arguments and affirm his sentences.

Factual and Procedural Background

Spotts initially was charged with three counts of rape, three counts of indecent liberties
with a child, and one count of aggravated sodomy after he admitted to engaging in sexual
intercourse on multiple occasions with a 12-year-old girl. Ultimately, Spotts pled no contest to
two counts of rape in violation of K.S.A. 21-3502(a)(2), sexual intercourse with a child under the
age of 14. Each crime constitutes an off-grid person felony.

In his sentencing proceedings, Spotts filed a motion seeking downward durational
departure sentences, which were authorized under K.S.A. 2006 Supp. 21-4643(d). Spotts argued
his case presented substantial and compelling reasons for departure based on the following
mitigating circumstances: (1) no prior sexually motivated convictions; (2) he took responsibility
for his actions and showed deep remorse for what happened; (3) the no contest plea saved the
victim from having to testify at trial; (4) the sexual acts were not committed by force or threat of
force; and (5) Spotts was taking an antidepressant and prescription sleep aid when the offenses
occurred and "just wasn't thinking right." Spotts also noted he would serve a considerably long
sentence even if the durational departures were granted.

The State opposed the motion. In doing so, the State noted: (1) Spotts had a substantial
criminal history with numerous prior person felony convictions, all of which resulted in a severity
level A criminal history score; (2) Spotts was on felony parole when he committed the offenses;
(3) Spotts understood the victim was 12 years old and repeatedly engaged in sexual intercourse
with her; and (4) the medications Spotts was taking were for anger control, stress, and to aid with
sleep.

The district court denied the motion for downward durational departures, and found none
of the asserted mitigating circumstances justified departures. Spotts was sentenced to life
imprisonment without the possibility of parole for 620 months (51 years, 8 months) for the first
offense and life imprisonment without the possibility of parole for 300 months (25 years) for the
second offense, with lifetime postrelease supervision for both convictions. The sentences were
ordered to run consecutively.

Spotts made a timely appeal. This court's jurisdiction is under K.S.A. 22-3601(b)(10)
(off-grid crime; life sentence).

Cruel or Unusual Punishment

Spotts challenges the life sentences that were imposed under K.S.A. 2006 Supp.
21-4643(a)(1). Spotts claims his sentences constitute cruel or unusual punishment under §
9 of the
Kansas Constitution Bill of Rights. But in making the argument, Spotts concedes he did not raise
this issue with the district court. This failure presents Spotts with an insurmountable obstacle
because two recent decisions by this court already determined a defendant may not argue this
issue for the first time on appeal. State v. Thomas, 288 Kan. 157, Syl. ¶ 1, 199
P.3d 1265 (2009);
State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2, 194 P.3d 1195 (2008).

As explained in those decisions, when a defendant fails to argue a constitutional challenge
at the district court level, but later tries to make the argument at the appellate level, the defendant
runs counter to the long-standing general rule that constitutional issues cannot be asserted for the
first time on appeal. Ortega-Cadelan, 287 Kan. at 159 (citing State v.
Gaudina, 284 Kan. 354,
372, 160 P.3d 854 [2007]). For an appellate court to proceed under these circumstances, it is
necessary for the party raising the constitutional issue to satisfy one of three recognized
exceptions to the general rule, which are: (1) The newly asserted claim involves only a question of
law arising on provided or admitted facts and is determinative of the case; (2) consideration of the
claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3)
the district court is right for the wrong reason. Pierce v. Board of County
Commissioners, 200
Kan. 74, 80-81, 434 P.2d 858 (1967).

In Ortega-Cadelan, this court reviewed fully the applicability those
Pierce exceptions
have in the context of a challenge under § 9 of the Kansas Constitution Bill of Rights to a
defendant's life sentence imposed under K.S.A. 2006 Supp. 21-4643(a)(1) when that challenge is
raised for the first time on appeal. In that case, the court determined the issue was too fact
intensive to be considered for the first time on appeal. The court noted that whether a life
sentence under K.S.A. 2006 Supp. 21-4643(a)(1) was cruel or unusual punishment must be
analyzed using the three-prong test set out in State v. Freeman, 223 Kan. 362, 367,
574 P.2d 950
(1978). Ortega-Cadelan, 287 Kan. at 160-61. Those considerations are:

"(1) The nature of the offense and the character of the offender should be
examined with
particular regard to the degree of danger present to society; relevant to this inquiry are the facts
of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the
injury resulting, and the penological purposes of the prescribed punishment;

"(2) A comparison of the punishment with punishments imposed in this jurisdiction
for
more serious offenses, and if among them are found more serious crimes punished less severely
than the offense in question the challenged penalty is to that extent suspect; and

"(3) A comparison of the penalty with punishments in other jurisdictions for the
same
offense." Freeman, 223 Kan. at 367.

In reviewing those factors, the Ortega-Cadelan court determined that a
Freeman analysis
necessarily intertwines both factual and legal questions, and further noted that no single legal
consideration under Freeman controls the outcome. Ortega-Cadelan, 287
Kan. at 161.
Accordingly, the Ortega-Cadelan court determined that it needs a record developed at
the district
court level to address the factual aspects embedded within the Freeman analysis in
order for a
defendant to properly bring a challenge to his or her life sentence under K.S.A. 2006 Supp.
21-4643(a)(1) as cruel or unusual punishment under § 9 of the Kansas Constitution Bill of
Rights.
Ortega-Cadelan, 287 Kan. at 161. A short time thereafter, this court in Thomas
followed Ortega-Cadelan and reiterated that the intermingling of these factual
and legal questions makes
development of a record at the district court level critical because appellate courts do not make
factual findings. Thomas, 288 Kan. at 161 (citing In re Adoption of
A.A.T., 287 Kan. 590, 599,
196 P.3d 1180 [2008]).

This appeal by Spotts brings to us the same arguments already addressed in
Ortega-Cadelan and Thomas. Since Spotts raises his cruel or unusual
punishment argument for the first
time on appeal, this court has no factual findings upon which to base an analysis of his arguments.
His claim that his life sentences under K.S.A. 2006 Supp. 21-4643(a)(1) constitute a cruel or
unusual punishment is not properly before this court.

Downward Durational Departure Motion

Spotts next argues the district court erred by denying his request for downward durational
departure sentences. We disagree.

Under the statute in effect when the offenses were charged, a first-time offender who is 18
years or older and convicted of committing rape of a child under the age of 14 must be sentenced
to a mandatory lifetime sentence with a minimum of not less than 25 years "unless the judge finds
substantial and compelling reasons, following a review of mitigating circumstances, to impose a
departure." K.S.A. 2006 Supp. 21-4643(d). If the sentencing judge departs from the mandatory
minimum term, the departure sentence "shall be the sentence pursuant to the sentencing guidelines
act, . . . and no sentence of a mandatory minimum term of imprisonment shall be imposed."
K.S.A. 2006 Supp. 21-4643(d).

The statute specifies a nonexclusive list of mitigating factors the judge may consider in
determining whether substantial and compelling reasons for departure exist: (1) The defendant has
no significant criminal history; (2) the crime was committed while the defendant was under the
influence of extreme mental or emotional disturbances; (3) the victim was an accomplice, and the
defendant's participation was relatively minor; (4) the defendant acted under extreme distress or
substantial domination of another person; (5) the defendant's capacity to appreciate the criminality
of his or her conduct or conform such conduct to the requirements of the law was substantially
impaired; and (6) the defendant's age at the time of the crime. K.S.A. 2006 Supp.
21-4643(d)(1)-(6).

Spotts argues that the issue as to whether a district court erred by denying a downward
durational departure under K.S.A. 2006 Supp. 21-4643(d) is a question of law involving statutory
interpretation. Accordingly, Spotts contends our standard of review is unlimited. But this court
has already determined that an abuse of discretion standard applies when an appellate court
reviews a district court's determination as to whether mitigating circumstances presented under
K.S.A. 2006 Supp. 21-4643 are substantial and compelling. See Thomas, 288 Kan. at
164;
Ortega-Cadelan, 287 Kan. at 165. Spotts' argument here is rejected. This court will
continue to
apply an abuse of discretion standard in these cases. Judicial discretion is abused "when no
reasonable person would take the view adopted by the district judge. [Citation omitted.]"
State v.
Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005).

Spotts argues his case presents substantial and compelling reasons for departure based on
the following mitigating circumstances: (1) no prior sexually motivated convictions; (2) he took
responsibility for his actions and showed deep remorse for what happened; (3) the no contest plea
saved the victim from having to testify at trial; (4) the sexual acts were not committed by force or
threat of force; and (5) Spotts was taking an antidepressant and prescription sleep aid when the
offenses occurred and "just wasn't thinking right." Spotts also contends he would serve a
considerably long sentence even if the durational departures were granted.

But the State argues the district court was justified in denying departure because: (1)
Spotts had a substantial criminal history with numerous prior person felony convictions, all of
which resulted in a severity level A criminal history score; (2) Spotts was on felony parole at the
time of the offenses; (3) Spotts understood the victim was 12 years old and repeatedly engaged in
sexual intercourse with her; and (4) the medications Spotts was taking were for anger control,
stress, and to aid with sleep.

This court has determined the statutory language dealing with departure sentences is clear
and unambiguous. Ortega-Cadelan, 287 Kan. at 164. The statute plainly provides that
a judge is
required to impose a life sentence "unless the judge finds substantial and compelling reasons,
following a review of mitigating circumstances, to impose a departure." K.S.A. 2006 Supp.
21-4643(d). The statute establishes a two-step procedure. First, the judge reviews mitigating
circumstances. Second, the judge determines if there are substantial and compelling reasons for a
departure. Ortega-Cadelan, 287 Kan. at 164.

The sentencing transcript in this case shows the district court heard and reviewed the
mitigating circumstances offered by the defendant and the arguments against the downward
departures made by the State. The district court then explained why the mitigating circumstances
listed by the defendant did not justify a finding of substantial and compelling reasons to impose
downward departures. Reasonable people could agree with the district court's assessment.

The district court did not abuse its discretion by denying Spotts' motion for downward
durational departure sentences.